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2010 DIGILAW 986 (JHR)

Salauddin v. S. k. Mohmood

2010-10-26

N.N.TIWARI

body2010
Order This second appeal is against the judgment and decree of learned Additional District Judge, F.T.C., Sahebganj passed in Title Appeal No. 2/99 whereby learned Lower Appellate Court has dismissed the appeal and affirmed the finding of learned Trial Court holding that the plaintiffs failed to prove that Bibi Rahiman and Bibi Kusum had gifted their undivided shares of the suit property in favour of the plaintiffs. 2. The plaintiffs had filed title suit in the Court of the Sub-ordinate Judge, Sahebganj praying for a decree declaring that the sale deed executed in favour of the defendants with respect to the suit property, described in Schedule 'B' of the plaint, is fictitious and further for a decree for eviction of -the defendant-first party from the suit premises. 3. The case of the plaintiffs was that the suit property is jointly recorded in the names of Bibi Rahiman (widow of Md. Ishaque Hussain) and Bibi Kulsum (widow of Md. Magherat Hussain) in Register-II maintained by the Government. The tenants Bibi Rahiman and Bibi Kulsum were the wives of the full brothers of Nurul Hoda, son of Kallu Mian. The plaintiffs and the defendant-second party are the heirs of the recorded tenant Nurul Hoda. The defendants-third party are other heirs and the defendant-first party is an ouster having no concern with the family of the recorded tenants. The original plaintiff (Shahjahan Begum) was the daughter of the recorded tenant Nurul Hoda. Her husband died during the lifetime of her father. She had been living- with her father alongwith her children in the suit house. Nurul Hoda died in the year 1961 leaving behind the plaintiff and the defendants second party as his heirs and they inherited their interest in the suit property after the death of Nurul Hoda. The said Bibi Rahiman and Bibi Kulsum, who were leaving elsewhere with their family members, had come to Sahebganj after the death of the plaintiff's father (Nurul Hoda) and feeling pity on the destitute and helpless condition of the plaintiff (Shahjahan Begum), they had gifted their undivided 2/3 share of the suit property in favour of the plaintiffs in presence of their relatives. The plaintiffs had accepted the said gift and they had been coming in possession of the suit property. The plaintiffs had accepted the said gift and they had been coming in possession of the suit property. Subsequently, in the year 1973, a portion of the suit property was let out to the defendant-first party on a monthly rent of Rs. 35/-. The said defendant paid rent till November 1978 and thereafter defaulted in payment of rent. The said defendant claimed that he had purchased the suit property from the defendants-third party and Mazhar Hussain, one of the grandsons of Bibi Rahiman on 20.12.78. According to the plaintiff, the alleged deed was fictitious and was obtained by false impersonation. The defendants-third 'party had no saleable interest in the suit property, as their grandmother Bibi Kulsum had already transferred her 1/3 interest in favour of the original plaintiff by oral gift. The property is Khas Mahal and the same is not transferable without prior permission of the Deputy Commissioner. 4. The defendant-first party contested the plaintiffs' suit and asserted his title over the suit land on the basis of his purchase from the heirs of Bibi Rahiman and Bibi Kulsum. The said defendant denied that he was inducted as a tenant in the suit premises and claimed that he purchased the suit property by virtue of sale deed dated 20.12.78, executed and registered by Bibi Rahiman and Bibi Kulsum measuring one Katha and 6 Dhurs of the suit land. Since thereafter he has been coming in possession of the suit property. The defendant had also filed an application before the Deputy Commissioner, Sahebganj for renewal of the lease in his favour in Lease Case No. 41/85-86 and his claim was recommended by the revenue authority. 5. On the basis of the said pleadings, several issues were framed by learned Trial Court. Both the parties adduced their evidences. learned Trial Court after elaborate discussion and due appraisal of the facts and evidences on record, came to the finding that the plaintiffs were not able to establish the said transfer of undivided share in the suit property by Bibi Rahiman and Bibi Kulsum in their favour. Learned Trial Court further held that the plaintiffs also failed to prove that the sale deed dated 20.12.1978 (Exts: C & C/1) were fictitious or obtained by false impersonation. Learned Trial Court also decided other material issues against the plaintiffs and dismissed the suit. Learned Trial Court further held that the plaintiffs also failed to prove that the sale deed dated 20.12.1978 (Exts: C & C/1) were fictitious or obtained by false impersonation. Learned Trial Court also decided other material issues against the plaintiffs and dismissed the suit. The plaintiffs, thereafter, filed title appeal in the Court of the District Judge, Sahebganj being Title Appeal No. 2/99. The said appeal was finally heard and decided by the Additional District Judge, FTC, Sahebganj by the impugned judgment and decree. 6. Learned Lower Appellate Court also scrutinized and appraised the materials and evidences on record and came to the finding that the plaintiffs failed to prove acquisition of the suit property by oral gift from Bibi Rahiman and Bibi Kulsum. While recording the conclusions and reasons, learned Lower Appellate Court has further observed that the suit land is Khas Mahal property and the same cannot be transferred without prior permission of the Deputy Commissioner. The plaintiffs have not been able to produce any document in support of their claim. There is also no evidence on record to show that on the basis of the said oral gift, the plaintiffs had applied for renewal of the lease before the Deputy Commissioner or before the revenue authority for mutation of their names. Learned Lower Appellate Court, thus, concurred with the findings of learned Trial Court and dismissed the appeal. 7. Mr. Amar Kumar Sinha,' learned counsel appearing on behalf of the appellants, took almost the same grounds which were taken before learned Courts below and which have been answered by learned Courts below holding that, the plaintiffs failed to prove their claim of acquisition of the suit property by virtue of oral gift. 8. Mulla in his book "Principles of Mohamedan Law" has dealt with the essentials of an oral gift. Section 149 of the said book enunciated the essentials as follows: (i) There must be a declaration of gift by donor, (ii) There must be acceptance of the gift, express or implied, by or on behalf of the donee. (iii) There must be delivery of possession of the subject of' the gift by the donor to the donee, as mentioned in Section 150 of the Mulla's Principles of Mohamedan Law. 9. (iii) There must be delivery of possession of the subject of' the gift by the donor to the donee, as mentioned in Section 150 of the Mulla's Principles of Mohamedan Law. 9. Learned Courts below have concurrently found that the plaintiffs were not able to establish the said three essentials of oral gift and failed to prove their case. 10. The findings of learned Lower Appellate Court are based on due appraisal of the evidences on record and there is no illegality or perversity in the said conclusions of learned Courts below. 11. The concurrent findings of the Courts below on the said facts are binding on this Court. I, therefore, find no ground made out in this appeal giving rise to any substantial question of law to be framed and decided by this Court. 12. This appeal is, accordingly, dismissed.